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Waisali Farm Produce Limited v Williams & Goslings Limited [2013] FJHC 473; HBA18.2008 (5 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No: HBA 18 of 2008

BETWEEN:

Waisali Farm Produce Limited
APPELLANT/ PLAINTIFF

AND:

William & Goslings Limited
RESPONDENT/DEFENDANT

COUNSEL : Mr. Diven Prasad for the Appellant
Mr. Nilesh Prasad for the Respondent

Date of Judgment : 5 September 2013

JUDGMENT

1. This appeal lies from an order of the Magistrate dated 15 September 2008 striking out a Statement of Claim with costs of $600.00 to be paid by the Plaintiff to the Defendant.
   
2. The Plaintiff’s Statement of Claim against the Defendant was on the basis that the Plaintiff, an exporter of Dalo, has handed over a container load of Dalo to the Defendant for delivery of the container subject to a condition of that correct temperature should be maintained by the Defendant until the delivery of goods to the consignee in USA namely Montalven Sale Inc in USA but failed to maintain the correct temperature in the container which resulted the consignment unusable and thereby entitled to claim damages against the Defendant for breach of contract and tort.
   
3. The Defendant in its Notice on Motion dated 24 August 2008 to strike out the claim, supported by the affidavit of Eddie Yuen sworn on 24 July 2008, asserted that the Defendant is the agent of Maersk Line and not the agent of the Plaintiff and moreover the principal of agent was disclosed to the Plaintiff in the Bill of Lading and thereby the Plaintiff is unable to maintain the Statement of Claim against the agent once the principal is disclosed to the Plaintiff.
   
4. The other main contention deposed in the affidavit was that once for the carrier accepted the liability and reached a settlement with the consignee and signed a release, the Plaintiff is now estopped in pursuing a claim against the Defendant.
   
5. The learned Magistrate accepted the position advanced by the Defendant in its motion supported by the affidavit and made an order striking out the Plaintiff’s claim.
   

Grounds of Appeal

1. The Learned Magistrate’s erred in law and in fact by holding that the Plaintiff as a shipper had knowledge that the Defendant was an agent of carrier Maersk Line when at all times the Plaintiff maintained Defendant as its agent and not the carrier.
   
2. The Learned Magistrate’s erred in law and in fact by holding that the Defendant was acting as Agent of Maersk Line and signed the bill of lading as agent of Maersk Line.
   
3. The Learned Magistrate eared in law and in fact by holding that the Plaintiff cannot adduce any further evidence to deny that the Defendant acted as agent only on the transaction of Maersk Line.
   
4. The Learned Magistrate erred in law and in fact by holding that the Plaintiff cannot produce further documents or agreement to show that the Defendant had direct links with the Plaintiff and failed to take in consideration Affidavit evidence of the Plaintiff.
   
5. The Learned Magistrate erred in law and in fact by holding that the Release signed by the consignee with the carrier discharge the Defendant of all liabilities when Defendant was never acting as agent for Maersk Line.
   
6. The Learned Magistrate erred in law and in fact by stating that the Plaintiff cannot bring a second claim for neglect and breach when the action No. 148 of 2008 was the first case against the Defendant for breach based under Duty of Care and negligence.
   
7. Upon examination of the grounds of appeal in the Notice of Appeal, it is clear that the main contention of the Appellant is that the Respondent is the agent of the Appellant and not the carrier and thereby liable to pay damages under tort and contract.
   
8. The other contention of the Appellant is that whether the Appellant is estopped or not in pursuing the claim after the settlement is reached between the consignee and the carrier with regard to the perished or unusable cargo.
   
9. In my view, the answers to the above two main issues for determination of this court would necessarily determines to all grounds of appeal raised by the Appellant in the Notice of Appeal.
   
10. At the outset, it is to be noted that the Respondent has handed over a Mearsk Line container to the Appellant for loading of Dalo for shipment to a identified consignee.
    
11. It is abundantly clear from the Statement of Claim and the affidavit filed on behalf of the Respondent that the shipment of goods and related legal issues are governed by the principles of sea carriage of Goods Act, Law relating to Bill of Lading and Hague - Visby rules.
    
12. The Respondent submitted the Bill of Lading issued by the carrier Maersk Line as evidence.
    
13. It is trite law that the Bill of Lading is a document signed by the carrier (a transporter of goods) or the carrier’s representative and issued to a consignor (the shipper of goods) that evidences the receipt of goods for shipment to a specified designation.
    
14. Carriers using all modes of transportation issue Bills of Lading when they undertake the transportation of cargo. A Bill of Lading is, in addition to a receipt for a delivery of goods, a contract for their carriage and a document of title to them. Its terms describe the freight for identification purposes, state the name of the consignor and the provisions of the contract for shipment and direct the cargo to be delivered to the order or assigns of a particular person, then consignee at a designated location.
    
15. Upon perusal of the way Bill issued by the carrier, the shipper or consignor is the Plaintiff company and the consignee is Montalvan’s Sales Inc. USA. This way Bill clearly stipulated the condition upon the contract has been entered in to.
    

“ This contract is subject to the terms and conditions, including the law & jurisdiction clauses and limitation of liability & declared value clauses, of the current Maersk Line Bill of Lading (available from the carrier, its agents and at www.maerskline.com), which are applicable with logical amendments (mutatis mutandis). To shipper shall be entitled to change the Consignee at any time before delivery of the goods provided he gives the Carrier reasonable notice in writing.

Delivery will be made to the Consignee or his authorized agent on production of reasonable proof of identity (and, in the case of an agent, reasonable proof of authority) without production of this waybill. The Carrier shall be under no liability whatsoever for misdelivery unless causes by the Carrier's negligence."

16. The way Bill also states under which condition the shipper delivered the goods to the carrier for shipment. It states that goods shipped in refrigerated container set at shipper's requested carriage temperature which was 8.0c.
    
17. In view of the above, it is apparent that the Plaintiff has entered in to a contract with the shipper through the way Bill.
    
18. It is also evident that Respondent delivered a Maersk line container on behalf of the principal and the way Bill was issued by the Maersk Line on acceptance of goods to the shipper.
    
19. I am unable to accept that the Respondent acted as a agent of the Appellant although Appellant contacted the Respondent for delivery and collection of the container to be handed over to the Maersk Line.
    
20. In view of the above, at all times the Respondent acted as a agent of Maersk Line and the principal of the agent was disclosed to the shipper at the time of entering into the contract which was the way Bill.
    
21. In the case of Austrac Rail P/L v. Hunter Premium Funding Limited [2001] NSWS2 654 (unreported) Justice Santow stated the following adapting the Halsbury's Laws of England when commenting on agency and principal relationship.
    

"Where an agent where in making a contract discloses both existence and the name of a principal on whose behalf the agent purports to make it, the agent is not, as a general rule, liable on the contract to the other contracting party whether there was in fact authority to make it or not."

22. In view of the above judgment, it is evidently clear that the shipper was aware of the principal of the agent and thereby shipper cannot maintain the claim against the agent.
    
23. Even upon perusal of the Hague - Visby Rules articles III (1) ( c) makes it clear that, it is the carrier who is liable for failure of maintaining the required temperature. Article III (1) (c ) states as follows:
    

"The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:

(c ) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation."

24. Similar provisions appear in the Fiji Sea Carriage of Goods Act as well:

Section 2 states as follows:

"Subject to the provisions of this Act, the rules contained in the Schedule (in this Act referred to as "the rules") shall have effect in relation to and in connexion with the carriage of goods by sea in ships carrying goods from any port in Fiji to any other port whether in or outside Fiji."

25. In the case of Texas Instruments Ltd and Ors v. Nason (Europe) Cargto Ltd and Ors. [1991] I Lloyd's Rep 146 Mr Justice Tudor Evans held as follows:
    

"In my view, when a seller is required to send the goods to the buyer in a foreign country, the goods in transit being at the buyer's risk, business efficacy required that, when the seller makes a contract with a carrier for carriage of the goods to the buyer, he does so on behalf of the buyer."

26. In taking into consideration of the above provisions of the Hague – Visby rules, sea carriage of Goods Act and the case law, it is clear to this court that the buyer is the one who is entitled to make a claim from the carrier if the goods are damaged or not usable condition if the required temperature level is not maintained.
    
27. The other main contention of the Respondent was that the consignee claimed against the carrier Maersk Line in USA and payment was made.
    
28. The consignee was paid after the release was signed by the consignee. In the release, it stated as follows:
    

"The consignee was paid and a release was signed by consignee being 50% of costs for which (consignee) was entitled under Bill of Lading. These include invoice value of goods plus freight and import duties."

29. The release was signed between parties and the payment was made subject to the following conditions:
    

"'Montalvan's Sale Inc ('Releaser') in consideration of the sum of Eighteen Thousand Seventy dollars and sixty two cents (US $18,070.62) irrevocably and without qualification and reservation releases Dampskinbasselskabet of 1912 Aktieselskab and Aktieselskabet Svendborg (trading under the name Maersk Line), Maersk Inc. (as agent of the foregoing entitles), and all of the aforementioned entities' affiliates/subsidiaries, officers, directors, agents, representatives, employee underwriters; and vessels that carried the subject cargo, including, but not limited to, the m/v Hansa Sonderburg 1951 their engines/boilers, owners, charterers, operators, underwriters, agents, terminals, stevedore (collectively "Releasees") from any and all claims of whatever nature, whether pending or potential in any amount arising out of or related to the shipment identified/described above.

The Releaser warrants that he is entitled to enforce, the aforesaid claim and warrants that all rights of the releaser are hereby intended to be and are subrogated to the Releasees."

30. It further states as follows:
    

"the Releaser (consignee) warrants that he is entitled to enforce the aforesaid claim and warrants that all rights of the Releaser are hereby intended to be and are subrogated to the Releasees."

31. It was evident that after the claim was settled and the payment was made, out of the amount received, US$11,267.89 was paid to the Appellant. In view of the above, it is clear that the Plaintiff cannot maintain the claim under contract and/or tort for damages as the Defendant who was the agent has been released when the consignee released the Maersk Line as the principal of the Defendant.
    
32. I conclude that the Plaintiff is estopped in claiming damages from the Defendant for the loss of goods.
    
33. The Ground 1, 2 and 5 are essentially concerned with the principal agency relationship and the operation of estoppel against the Appellant. None of the matters raised to substantiate the above grounds have any merits and I see no reason why the learned Magistrate's findings should be disturbed.
    
34. Grounds 3, 4 and 6 are mainly on the premise that whether any further evidence or material is required for the learned magistrate to come to the correct findings or not.
    
35. In my view, the learned Magistrate correctly upheld the legal position advanced by the Respondent on the material submitted to court. I also conclude that there is no basis whatsoever for the Appellant to maintain another action for damages on the alleged breach of duty of care as the dispute between parties have been fully settled. Any applications to allow the Appellant to maintain another action would necessity amounts to unjust enrichment. The learned Magistrate in his ruling has correctly considered the adequacy of evidence to come to correct finding and held that no other evidence could change the outcome of his decision to strike out.
    
36. For all the above reasons the appeal is dismissed. The Appellant is ordered to pay Respondent's costs which are fixed summarily in the sum of $1,000.00 within 28 days.
    

Susantha N. Balapatabendi
JUDGE